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United States v. Climico (Mendoza)



### UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT



## SUMMARY ORDER

R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT

. C ITATION TO A

SUMMARY ORDER FILED ON OR AFTER J ANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY

F EDERAL R ULE OF A PPELLATE P ROCEDURE 32.1 AND THIS COURT = S L OCAL R ULE 32.1.1.

W HEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT

, A PARTY MUST

CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH THE NOTATION

A SUMMARY ORDER @ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON

ANY PARTY NOT REPRESENTED BY COUNSEL

.

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley

Square, in the City of New York, on the 29 th day of October, two thousand

eighteen.

PRESENT: DENNIS JACOBS,

REENA RAGGI,

DENNY CHIN,

Circuit Judges.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X

UNITED STATES OF AMERICA,

Appellee,

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JUAN R. CLIMICO, aka Sealed Defendant, 1,

aka Manuel Climico, aka Juan Clinico, aka

Smiley, aka Juanito, MARCO CRUZ, aka Marco

Antonio Cruz Bello, aka Marcos Cruz, aka

Sealed Defendant, 2, aka Juan Bello, aka Freddo2 Gomez, aka Burro, aka Mariguano, FIDEL

DEJESUS, aka Sealed Defendant, 3, aka

Duende, JORGE LEYVA, aka Sealed Defendant,

4, aka Cucha, JESUS MARTINEZ, aka Sealed

Defendant, 5, aka Gafas, aka Tito, RUBI

MARTINEZ, aka Sealed Defendant, 6,

ARTURO MEDINA

‐ LOPEZ, aka Sealed

Defendant, 7, aka Arturo Medina, aka Marlboro,

YASMIN OSUNA, aka Sealed Defendant, 9, aka

La Mona, La Mono, MARCOS REYES, aka

Sealed Defendant, 10, aka Marco Reyes, aka

Cuervo, WILLIAM ROJAS, aka Sealed

Defendant, 11, aka Willy, LUISBI SANTOS, aka

Sealed Defendant, 12, aka Chorejas, aka

Dumbo, aka Lulu,

Defendants,

RUDY MENDOZA, aka Sealed Defendant, 8, aka

Raul Perez, aka Pedro Mendoza,

Defendant

‐ Appellant.

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ X

FOR APPELLANT: GLENN A. GARBER, Glenn Garber,

P.C. (Ezra Spilke, Law Offices of Ezra

Spilke; Sarah Kunstler, Law Offices

of Sarah Kunstler, on the brief), New

York, New York.

FOR APPELLEE: AMY LESTER (Andrew Thomas,

Karl Metzner, on the brief), Assistant

United States Attorneys, for Geoffrey

S. Berman, United States Attorney

for the Southern District of New

York, New York, New York.3 Appeal from a judgment of the United States District Court for the

Southern District of New York (McMahon, Ch.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED AND DECREED that the judgment of the district court be

AFFIRMED

.

Rudy Mendoza appeals from the judgment of the United States District

Court for the Southern District of New York (McMahon, Ch.J.), sentencing him

principally to 300 months’ imprisonment after conviction for (1) participation in

the “Vagos Gang” racketeering conspiracy, in violation of 18 U.S.C. § 1962(d); (2)

participation in a Vagos Gang

‐ related conspiracy to distribute and possess with

intent to distribute cocaine, in violation of 21 U.S.C. §§ 812, 841(a)(1),

841(b)(1)(C), and 846; (3) participation in a conspiracy to commit Hobbs Act

armed robbery of individuals believed to be in possession of 20 kilograms of

cocaine, in violation of 18 U.S.C. § 1959; (4) use of a firearm in connection with

the robbery conspiracy, in violation of 18 U.S.C. § 924(c)(1)(A)(i); and (5)

participation in a conspiracy to distribute and possess with intent to distribute 5

kilograms or more of cocaine, also in connection with the robbery conspiracy, in

violation of 21 U.S.C. §§ 812, 841(a)(1), 841(b)(1)(A), and 846. Mendoza

challenges the sufficiency of the evidence; the jury instructions; trial counsel’s

effectiveness; the procedural reasonableness of his sentence; and the applicability

of § 924(c) to Hobbs Act robbery conspiracy. We assume the parties’ familiarity

with the underlying facts, the procedural history, and the issues presented for

review.

1. A defendant challenging the sufficiency of the evidence underlying

his conviction at trial “bears a heavy burden”: We “view the evidence in the

light most favorable to the government, crediting every inference that could have

been drawn in the government’s favor, and deferring to the jury’s assessment of

witness credibility and its assessment of the weight of the evidence.” United

States v. Coplan, 703 F.3d 46, 62 (2d Cir. 2012) (citations omitted). We must

uphold the judgment if “ any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v.

Virginia, 443 U.S. 307, 319 (1979)). “The traditional deference accorded to a jury’s

verdict is especially important when reviewing a conviction for conspiracy4 because a conspiracy by its very nature is a secretive operation, and it is a rare

case where all aspects of a conspiracy can be laid bare in court with the precision

of a surgeon’s scalpel.” United States v. Jackson, 335 F.3d 170, 180 (2d Cir. 2003)

(internal quotation marks and ellipsis omitted).

Mendoza argues that the evidence was insufficient to prove his

participation in the Vagos Gang racketeering conspiracy during the charged time

frame (2009

‐ 2011). Viewed in the proper light, the evidence showed that

Mendoza was associated with the Vagos Gang as early as 2001, was initiated in

2002, and was an active participant

‐ member from that time and at essentially all

subsequent times when not incarcerated 1

‐‐ including during the charged time

frame. Mendoza was released from prison in March 2011 and quickly resumed

his participation with the criminal organization. Mendoza sold cocaine to Juan

Climico, the leader of the 110th Street subset of the Vagos Gang, on numerous

occasions in 2011, as Mendoza admitted during his testimony. The jury heard

recordings of numerous wiretapped telephone conversations between Mendoza

and Climico between July 2011 and Mendoza’s September 19 arrest, in which

Mendoza inquired as to the activities of Climico’s set of the Vagos Gang; made

plans with Climico to extort and rob prostitution rings (a Vagos Gang activity in

which Mendoza had been involved before his incarceration); offered and asked

for guns; and discussed providing cocaine to Climico and other Vagos Gang

members. In the calls, Mendoza referred to the Vagos Gang as “we” and spoke

about wanting to increase its numbers; he also said that he wanted the Vagos

Gang to have a large presence at an annual Mexican festival in September 2011 so

that rival gangs would take notice. Mendoza’s continued participation with the

Vagos Gang was also evidenced by a reference to the 116th Street set of the

Vagos Gang in the email address Mendoza associated with his 2011

‐ activated

Facebook page, and by several 2011 posts on that Facebook page. The evidence

was more than sufficient to support the jury’s finding that Mendoza agreed to

1 Mendoza was incarcerated from approximately January 15, 2003, through

March 9, 2004; August 15, 2005, through January 6, 2006; and March 13, 2009,

through March 15, 2011.5 (and did) participate in the Vagos Gang racketeering conspiracy during the

charged time frame. 2

As to the three counts relating to the Hobbs Act armed robbery conspiracy,

Mendoza contends that the evidence was insufficient to prove that he had

knowledge that the objective of the robbery conspiracy was to steal cocaine (as

opposed to, e.g., cash) from an undercover agent posing as drug courier. 3 Three

of Mendoza’s co

‐ conspirators (his uncle and cousins) had numerous

conversations with the undercover agent about their plan to steal 20 to 25

kilograms of cocaine, and to split the cocaine 50/50 with the agent. Mendoza’s

2 Mendoza also argues that there was insufficient evidence of his connection to

any two racketeering acts committed as part of the criminal enterprise. The

RICO conspiracy count required proof that Mendoza agreed “with others (a) to

conduct the affairs of an enterprise (b) through a pattern of racketeering.”

United States v. Basciano, 599 F.3d 184, 199 (2d Cir. 2010). “[A] conspirator

charged with racketeering conspiracy need not commit or even agree to commit

the predicate acts

. . . .” United States v. Cain, 671 F.3d 271, 291 (2d Cir. 2012).

“[T]he jury must consider the predicate acts charged against the defendant and

his alleged co

‐ conspirators to determine ‘whether the charged predicate acts

were, or were intended to be, committed as part of that conspiracy.’” Id.

(quoting United States v. Yannotti, 541 F.3d 112, 129 n.11 (2d Cir. 2008)). In

addition to the activities discussed on the 2011 wiretapped phone calls, the jury

heard about a Vagos Gang

‐ related attempted murder in June 2011. The jury

could have easily found that Mendoza or a co

‐ conspirator committed or intended to

commit multiple, related acts of murder, extortion, robbery, and narcotics

trafficking (the charged predicates) in connection with the enterprise.

3 Mendoza appears to acknowledge that the evidence was sufficient to prove his

intent to participate in a robbery

. Indeed, Mendoza’s recorded conversation with

the undercover agent soon before the arrest demonstrated that Mendoza knew

the plan was to commit a push

‐ in robbery; comments on his Facebook page a few

weeks prior to the robbery revealed that Mendoza had been looking for the

opportunity to commit a robbery; and Mendoza and his co

‐ conspirators were

arrested with the tools (firearms and a rope) needed to carry out a robbery

consistent with the previously made plans.6 uncle told the agent that Mendoza knew what was going on, was ready to do

“the job,” “ready to do

. . . what they have to do,” and was one of his “trusted

people.” A674

‐ 78. An audio recording of Mendoza corroborates that he was an

informed participant who knew quite well the robbery strategy previously

discussed by the co

‐ conspirators and the agent. Furthermore, Mendoza’s

involvement in cocaine trafficking during this period permits the inference that

Mendoza agreed to commit this robbery in part because the target was cocaine.

And a taped conversation during which Mendoza agreed to the manner of

splitting proceeds can be reasonably interpreted to show that Mendoza knew the

target of the robbery was drugs, not money. 4 The jury could have reasonably

inferred from all of this evidence that Mendoza had been fully informed by his

co

‐ conspirators as to the armed robbery conspiracy, including that they planned

to obtain 20 or more kilograms of cocaine. See United States v. MacPherson, 424

F.3d 183, 189

‐ 90 (2d Cir. 2005) (“The law

. . . recognizes that the mens rea

elements of knowledge and intent can often be proved through circumstantial

evidence and the reasonable inferences drawn therefrom.”).

2. We review a challenge to jury instructions de novo and will reverse

“only where the charge, viewed as a whole, ‘either failed to inform the jury

adequately of the law or misled the jury about the correct legal rule.’” United

States v. Quinones, 511 F.3d 289, 314 (2d Cir. 2007) (quoting United States v.

Ford, 435 F.3d 204, 209

‐ 10 (2d Cir. 2006)). Since Mendoza did not object to the

challenged instruction before the submission of the case to the jury, we review

for plain error. 5 See United States v. Botti, 711 F.3d 299, 308 (2d Cir. 2013).

4 The agent used the word “they” and Mendoza’s co

‐ conspirator Jose Ramos

used the phrase “our shit” when referring to the proceeds, A498

‐ 500; this

language undermines Mendoza’s contention that he might have thought the

object of the robbery was money, rather than kilograms of cocaine.

5 “Plain error review requires a defendant to demonstrate that ‘(1) there was

error, (2) the error was plain, (3) the error prejudicially affected his substantial

rights, and (4) the error seriously affected the fairness, integrity or public

reputation of judicial proceedings.’” United States v. Youngs, 687 F.3d 56, 59 (2d

Cir. 2012) (quoting United States v. Flaherty, 295 F.3d 182, 195 (2d Cir. 2012)).7 Mendoza asserts that the district court provided an incomplete instruction

regarding the vertical (as opposed to horizontal) relatedness requirement of the

predicate racketeering acts. 6 As to relatedness, the instruction was not, taken as a

whole, misleading. The jury was instructed that racketeering acts must be

“related to each other by a common scheme or plan, such as furthering the ends or

goals of the enterprise .” A1706. While it may be preferable to distinguish between

horizontal and vertical relatedness, and to do so distinctly, this instruction

sufficiently incorporated both requirements. See United States v. Daidone, 471

F.3d 371, 375 (2d Cir. 2006) (per curiam).

3. To prevail on a claim of ineffective assistance of counsel, a defendant

must (1) “show that counsel’s representation fell below an objective standard of

reasonableness”; and (2) “affirmatively prove prejudice.” Strickland v.

Washington, 466 U.S. 668, 688, 693 (1984). “[A] petitioner cannot show prejudice

if the claim or objection that an attorney failed to pursue lacks merit.”

Harrington v. United States, 689 F.3d 124, 130 (2d Cir. 2012).

6 In passing, Mendoza also asserts that the district court erred in failing to

instruct the jury as to the continuity requirement of the predicate acts. However,

the substance of Mendoza’s argument deals only with vertical relatedness, not

continuity, so this does not suffice to preserve the issue. See Norton v. Sam’s

Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs

are considered waived and normally will not be addressed on appeal.

. . .

Pursuant to this rule, we have held that

. . . stating an issue without advancing an

argument

. . . did not suffice.”).

In any event, there is no reasonable probability that an instruction as to

continuity would have had any effect on the jury’s verdict. See Cain, 671 F.3d at

277. In a case like this, involving a criminal, rather than lawful, enterprise,

continuity is easily established. See H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229,

242

‐ 43 (1989) (“[T]he threat of continuity is sufficiently established where the

predicates can be attributed to a defendant operating as part of a long

‐ term

association that exists for criminal purposes. Such associations include, but

extend well beyond, those traditionally grouped under the phrase ‘organized

crime.’”). The wiretapped conversations between Mendoza and Climico

demonstrated that continuing criminal activity was intended.8 Mendoza cites trial counsel’s failure to challenge the racketeering acts jury

instruction discussed above. The ineffectiveness claim fails because (inter alia)

there was no error. 7 See United States v. Frampton, 382 F.3d 213, 222 n.8 (2d Cir.

2004) (“Having found no error in [the district court’s jury] instruction, we hold

[defendant’s ineffective assistance] claim must fail.”).

4. We review the procedural reasonableness of a sentence under a

“deferential abuse

‐ of

‐ discretion standard.” Gall v. United States, 552 U.S. 38, 41

(2007). This means that a district court’s legal application of the Sentencing

Guidelines is reviewed de novo and its underlying factual findings are reviewed

for clear error. United States v. Cossey, 632 F.3d 82, 86 (2d Cir. 2011).

Mendoza challenges the district court’s application of a two

‐ point

enhancement under U.S.S.G. § 3C1.1 for obstruction of justice. Mendoza fails to

show procedural error. The district court applied the enhancement because it

determined that Mendoza willfully had perjured himself on material issues at

trial. The district court found that Mendoza “lied and lied and lied” about his

knowing participation in the armed robbery conspiracy, as evidenced by the

different version of events revealed by Mendoza’s own words on the

contemporaneous audio recording and by the undercover agent’s testimony.

This finding was not clearly erroneous and is a sufficient basis for applying the

enhancement. See United States v. Salim, 549 F.3d 67, 73 (2d Cir. 2008); United

States v. Lincecum, 220 F.3d 77, 80

‐ 81 (2d Cir. 2000) (per curiam).

5. Mendoza was convicted under 18 U.S.C. § 924(c) for use of a firearm

in connection with a “crime of violence”; his underlying offense was conspiracy

to commit Hobbs Act robbery under 18 U.S.C. § 1951. He argues that conspiracy

7 Although “in most cases a motion brought under [28 U.S.C.] § 2255 is preferable

to direct appeal for deciding claims of ineffective assistance,” Massaro v. United

States, 538 U.S. 500, 504 (2003), we may resolve Mendoza’s claim on direct appeal

because no additional fact

‐ finding is necessary and the claim can be resolved on

the current record “beyond any doubt,” United States v. Gaskin, 364 F.3d 438,

468 (2d Cir. 2004) (quoting United States v. Khedr, 343 F.3d 96, 100 (2d

Cir. 2003)).9 to commit Hobbs Act robbery is not a “crime of violence” under 18 U.S.C.

§ 924(c)(3).

We held in United States v. Hill, 890 F.3d 51 (2d Cir. 2018), that Hobbs Act

robbery is categorically a crime of violence under § 924(c)(3)(A). Conspiracy to

commit such an offense, “by its ‘very nature’ presents a substantial risk of

physical force, so as also to be a violent crime under” the subsection’s “risk

‐ of

‐

force” clause, § 924(c)(3)(B). United States v. Barrett, 903 F.3d 166, 175 (2d Cir.

2018). Mendoza argues that Barrett and Hill were wrongly decided, and that

Barrett’s categorical application of 18 U.S.C. § 924(c)(3)(A) and § 924(c)(3)(B) is

dubious in light of the Supreme Court’s decisions in Johnson v. United States,

135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018).

Nonetheless, Barrett is the law of this Circuit. Our precedent thus establishes

that Mendoza’s offense is categorically a “crime of violence” under § 924(c).

Mendoza’s offense also qualifies as a crime of violence under a conduct

‐ specific application of 18 U.S.C. § 924(c)(3)(B). This Court has held that

§ 924(c)(3)(B) “can be applied to a defendant’s case

‐ specific conduct, with a jury

making the requisite findings about the nature of the predicate offense and the

attending risk of physical force being used in its commission. Such a conduct

‐ specific approach avoids

. . . due process vagueness concerns identified in

Dimaya and Johnson.” Barrett, 903 F.3d at 178. While a conduct

‐ specific

§ 924(c)(3)(B) determination was not made by the jury here, any error in failing to

require the jury to make such a finding was harmless beyond a reasonable doubt.

Mendoza was convicted of a conspiracy to steal 20 to 25 kilograms of cocaine

through the use of physical force, including forcing open the door at the robbery

location and hitting, tying up, and pistol whipping the targets of the robbery.

Indeed, the conspirators brought with them firearms and rope. Therefore,

because the predicate offense of Mendoza’s conviction entailed a “plan[] to use

physical force,” the “evidence can only support a finding that the charged

conspiracy, by its nature, involved a substantial risk of the use of physical force.”

Id. at 184 (emphasis in original).

Accordingly, the district court did not err in applying the “crime of

violence” sentencing enhancement to Mendoza’s Hobbs Act robbery conspiracy

conviction.10 For the foregoing reasons, and finding no merit in Mendoza’s other

arguments, we hereby AFFIRM the judgment of the district court.

FOR THE COURT:

CATHERINE O’HAGAN WOLFE, CLERK